May 23, 2014
Minsky, McCormick & Hallagan
On May 6, 2014, U.S. Citizenship and Immigration Services (USCIS) released training materials related to the U.S. Supreme Court’s decision in United States v. Windsor to strike down section 3 of the Defense of Marriage Act. The American Immigration Lawyers Association (AILA), a national association of lawyers who practice and teach immigration law, obtained the release of these materials through a Freedom of Information Act request.
USCIS is the governmental agency that reviews and decides applications and petitions for immigration benefits, such as applications for a green card based on marriage and applications for citizenship, among many others. The released materials are intended for the training of USCIS officers who will be conducting interviews and deciding whether to approve or deny such applications and petitions. The materials reflect USCIS’s views on post-Windsor treatment of same-sex couples’ applications for immigration benefits and shed light on how USCIS will be handling the details of these cases.
Although the training materials covered a broader range than what is reviewed here, what follows are some notable highlights:
- Place of marriage: Some couples were married in a state that recognizes same-sex marriage but now live in a state that doesn’t recognize their marriages. USCIS confirmed that generally, they will regard such marriages as valid. For marriages that were performed in a jurisdiction that recognizes same-sex marriage when the couple now lives in a jurisdiction that does not recognize same-sex marriage, USCIS confirmed that “as a general matter, the place-of-celebration determines the legal validity of a marriage….and same-sex marriages are not excepted from the general…rule.”
- Civil unions: USCIS confirmed that they will not recognize civil unions or domestic partnerships for the purpose of immigration benefits.
- Documentary proof of relationship: When married couples apply for immigration benefits based upon their marriage, they must first prove the marriage is real and not solely to obtain immigration benefits (a “bona fide” marriage); this is true for both same- and opposite-sex couples. Couples can prove their marriage is real by providing documentary evidence (such as photographs, joint bank accounts, a lease or mortgage, shared medical insurance, etc…) and through testimony at the time of their USCIS interview. USCIS noted in its materials that “some documentary evidence routinely seen in opposite-sex cases may not be available in same-sex cases” such as leases, work benefits, and affidavits from friends and family. USCIS noted that a couple may not both be listed on the lease for fear of discrimination, a spouse may not be listed on health benefits at work if the working spouse is not “out” at his or her place of employment, and couples might be unable to obtain affidavits from family members if the couple has not come out to their families. USCIS stressed that “adjudicators should focus on the evidence in the record” and that applicants “should not be penalized for failing to produce certain documents the adjudicator may expect.”
- Interviews: USCIS stressed the importance of creating a non-threatening atmosphere during interviews and provided guidelines such as “refrain from irrelevant and/or extraneous comments or questions” and “do not assume that being a sexual minority is a lifestyle or a choice.” The training materials also reviewed potential same-sex interview scenarios, discussed what problems might arise from an adjudicator’s questions or behavior, and addressed how to handle such interviews differently.
If you have questions about whether you qualify for immigration benefits based on your same-sex marriage, or how to proceed with your case, you may contact us at 312-427-6163 or via our website.